California's Supreme Court upheld the state's gay-marriage ban Tuesday but said the estimated18,000 same-sex weddings that took place before the prohibition passed are still valid - a rulingdecried by gay-rights activists as a hollow victory.
Demonstrators outside the court booed, wept and yelled, "Shame on you!" Activists said theywould go back to the voters as early as next year in a bid to repeal the ban, and a federal lawsuitseeking to overturn it was filed late last week.
In a 6-1 decision written by Chief Justice Ron George, the court rejected arguments that theban approved by the voters last fall was such a fundamental change in the California Constitutionthat it first needed the Legislature's approval.
"We are extremely pleased that the Supreme Court has acknowledged the right of voters todefine marriage in the California Constitution," said Andrew P. Pugno, a lawyer forProtectMarriage.com, the leading group behind the initiative. "The voters have decided this issueand their views should be respected."
As for the thousands of couples who tied the knot last year in the five months that gaymarriage was legal in California, the court said it is well-established principle that an amendmentis not retroactive unless it is clear that the voters intended it to be, and that was not the casewith Proposition 8.
Moreover, the court said it would be too disruptive to apply Proposition 8 retroactively anddissolve all gay marriages.
Doing that would have the effect of "throwing property rights into disarray, destroying thelegal interests and expectations of thousands of couples and their families, and potentiallyundermining the ability of citizens to plan their lives according to the law as it has beendetermined by this state's highest court," the ruling said.
While gay rights advocates accused the court of failing to protect a minority group from thewill of the majority, the justices said that the state's governing framework gives voters almostunfettered ability to change the California Constitution.
The decision set off an outcry among a sea of demonstrators who had gathered in front of theSan Francisco courthouse, holding signs and waving rainbow flags. Many people also held hands in achain around an intersection in an act of protest. More than 150 protesters were arrested, withcitations for failure to obey a police officer and jaywalking.
Later in the day, about 300 people marched from City Hall to a downtown park, holding signswith slogans such as, "Still Married, Still Fighting" and "Ban the marriage of church and state."
More than 1,500 protesters gathered at a nighttime rally in West Hollywood, expressing theiropposition to the decision. Police said the rally was peaceful, with no arrests reported.
In San Francisco's Castro district, where many gay men and lesbians live, the large rainbowgay pride flag that flies in Harvey Milk Plaza had been lowered to half-staff and a black stripeput on the top.
"We're relieved our marriage was not invalidated, but this is a hollow victory because thereare so many that are not allowed to marry those they love," said Amber Weiss, 32, who was in thecrowd at City Hall, near the courthouse, with her partner, Sharon Papo. They were married on thefirst day gay marriage was legal last year, June 17.
"I feel very uncomfortable being in a special class of citizens," Papo said.
Jeanne Rizzo, 62, who was one of the plaintiffs along with her wife, Pali Cooper, said: "It'snot about whether we get to stay married. Our fight is far from over. I have about 20 years left onthis earth, and I'm going to continue to fight for equality every day."
A San Francisco police officer said many of the officers staffing the protest were members ofthe department's group for gay, lesbian and transgender police.
"I go out every day fighting for people's lives but I can't get married to who I want to,"said Officer Lenny Groberg, 52, the first openly gay officer assigned to the city's gang taskforce.
A small group of Proposition 8 supporters also gathered outside the court.
"A lot of people just assume we're religious nuts. We're not. But we are Christians and webelieve in the Bible," said George Popko, 22, a student at American River College in Sacramento,where the student government officially endorsed Proposition 8.
In the state capital, Republican state Assemblyman Sam Blakeslee of San Luis Obispo, theincoming minority leader, said the court's decision "reaffirmed the principle that the people'svotes do matter."
The state Supreme Court ruled 4-3 last May that it was unconstitutional to deny gay couplesthe right to wed. For a while, that put California - the nation's most populous state - back in itsfamiliar position in the vanguard of social change; at the time, Massachusetts was the only otherstate to allow gay marriage.
In what gay activists called their "Summer of Love," same-sex couples from around the countryrushed to get married in California for fear the voters would take away the right at the ballotbox. In November, Proposition 8 passed with 52 percent approval.
As the fight went on in California, Iowa, Maine, Vermont and Connecticut legalized gaymarriage, bringing to five the number of states that allow same-sex couples to wed.
In California, gay rights activists argued that the ban was improperly put to the voters andamounted to a revision - which required legislative approval - not an amendment. But the justicesdisagreed.
The court said that while the ban denies gay couples use of the term "marriage," it does notfundamentally disturb their basic right to "establish an officially recognized and protected familyrelationship with the person of one's choice and to raise children within the family." Californiastill allows gay couples to form domestic partnerships.
In their 136-page majority ruling, the justices said it not their job to address whether theban is wise public policy, but to decide whether it is constitutionally valid, while "setting asideour own personal beliefs and values."
Justice Carlos Moreno, who had been under consideration as President Barack Obama's nomineeto the U.S. Supreme Court, was the lone dissenter.
He said denying same-sex couples the right to wed "strikes at the core of the promise ofequality that underlies our California Constitution." He said it represents a "drastic andfar-reaching change."
"Promising equal treatment to some is fundamentally different from promising equal treatmentfor all," Moreno said. "Promising treatment that is almost equal is fundamentally different fromensuring truly equal treatment."
San Francisco City Attorney Dennis Herrera, whose office fought the ban, said: "Today we arefaced with a disappointing decision. But I think we also know it could have been worse."
Prominent lawyers Theodore B. Olson and David Boies filed a lawsuit Friday in U.S. DistrictCourt on behalf of two gay men and two gay women, arguing that Proposition 8 violates the U.S.constitutional guarantee of equal protection and due process.
Olson said he hopes the case, which seeks a preliminary injunction against the measure untilthe case is resolved, will wind up before the U.S. Supreme Court. He is a former U.S. solicitorgeneral who served in high-level Justice Department jobs in the Reagan and George W. Bushadministrations.